Subject: SEC class designation for the early
years at the Hanford Engineer Works

Background: Pursuant to the Energy Employees
Occupational Illness Compensation Program Act of 2000 (EEOICPA) and 42 C.F.R.
Part 83, a petition was filed on behalf of a class of employees at the Hanford
Engineer Works (HEW or Hanford) in Richland, WA to add the class to the SEC.

The
National Institute for Occupational Safety and Health (NIOSH) reviewed the
petition and decided it qualified for evaluation under 42 C.F.R. § 83.13.
NIOSH submitted its findings to the petitioners and the Advisory Board on
Radiation and Worker Health (“the Board”). On August 9, 2007, the Board submitted a letter of recommendation to the Secretary of Health and Human Services
(HHS) to add the class of employees who worked at Hanford during the early years
of operation to the SEC.

On September 12, 2007, the Secretary of HHS designated the following class for addition to
the SEC in a report to Congress.

Employees
of the Department of Energy (DOE), its predecessor agencies, or DOE contractors
or subcontractors who were monitored or should have been monitored for internal
radiological exposures while working at the Hanford Engineer Works in: the 300
Area fuel fabrication and research facilities from October 1, 1943 through
August 31, 1946; the 200 Area plutonium separation facilities from November 1,
1944 through August 31, 1946; or the 100 B, D and F reactor areas from
September 1, 1944 through August 31, 1946; for a number of work days
aggregating at least 250 work days or in combination with work days within the
parameters established for one or more other classes of employees in the
Special Exposure Cohort.

A copy of the
Secretary’s letter to Congress recommending the designation is included as Attachment
1. The SEC designation for the class became effective October 12, 2007, which was 30 days after the Secretary of HHS designated the class for addition to
the SEC in a report to Congress. While Congress had the authority to reject
the recommendation within the 30-day time frame, no action was taken to
contradict the addition of this new SEC class.

Although a new SEC
class has been added for employees at the Hanford Engineer Works, NIOSH has
determined that, with the exception of internal dose from fission products and
plutonium, it is possible to estimate all other internal and external exposures
and to estimate occupational medical dose for employees at Hanford. This means
that for claims that do not satisfy the SEC membership criteria, a partial dose
reconstruction is to be performed by NIOSH.

References: Energy Employees Occupational Illness
Compensation Program Act of 2000, 42 U.S.C. § 7384 et seq.; 42 C.F.R.
Part 83, Procedures for Designating Classes of Employees as Members of the
Special Exposure Cohort Under EEOICPA; the September 12, 2007 letter to
Congress from the Secretary of HHS in which Secretary Leavitt makes the
designations.

Purpose: To provide procedures for processing SEC
claims for those employed at the Hanford Engineer Works in Richland, WA.

Applicability: All staff.

Actions

1. This new
addition to the SEC encompasses claims already denied, claims at NIOSH for dose
reconstruction, and future claims yet to be submitted.

2.
The Division of Energy Employees Occupational Illness Compensation (DEEOIC) has
prepared a list of employees with claimed employment at Hanford during the period
of the SEC class. This list is a comprehensive list of those cases that must be
reviewed by the district office(s) to determine whether the SEC class criteria
are satisfied. It includes pending cases with employment during the SEC period
with either a specified or non-specified cancer, and cases previously denied
for a POC less than 50% and Hanford cases currently at NIOSH. This
comprehensive list will be provided to the appropriate district offices under
separate cover.

NIOSH has also
identified cases associated with this new class in the SEC. The DEEOIC list
includes NIOSH-identified cases. Additionally, NIOSH will return dose
reconstruction analysis records for cases with specified cancers to the
appropriate district office along with a CD for each case. The CD contains all
of the information generated to date, e.g., CATI report, correspondence, and
dose information. Also included on the CD, in the Correspondence Folder,
should be a copy of the NIOSH letter sent to each claimant informing the
claimant of the new SEC class and that his or her case is being returned to DOL
for adjudication. A copy of the NIOSH letter to affected Hanford claimants is
included as Attachment 2. The claims examiner (CE) must print out a
hard copy of the NIOSH letter for inclusion in the case file. Case files
returned from NIOSH to the district office for potential inclusion in the SEC
class must be coded as “NW” (NIOSH, returned without a dose reconstruction) in
ECMS. The effective date for the code entry is October 12, 2007.

3. For any cases
identified as having a potential for compensability based on the new SEC class,
the responsible CE is to: review all relevant documentation contained in the
case file, including any documentation that NIOSH may have acquired or
generated during the dose reconstruction process. Action #5 provides additional
guidance on making the determination of whether the employee’s employment
should be included in the class.

4. Based on this
review, the CE determines whether the claimant has a specified cancer, as
listed in the Federal (EEOICPA) Procedure Manual Chapter 2-600.5. If the
employee has a specified cancer, proceed to the Action #5. If the employee
does not have a specified cancer, proceed to Action #7.

5. If the employee
has a specified cancer, the CE must determine if the worker was employed for at
least 250 work days at one of the designated areas between the specified dates.
Expressed in chart form the parameters of this new SEC class are:

Area

Start date

End date

100 B, D and F
reactor areas

September 1, 1944

August 31, 1946

200 Area plutonium
separation facilities

November 1, 1944

August 31, 1946

300 Area fuel
fabrication and research facilities

October 1, 1943

August 31, 1946

The three start
dates each coincide with the first time radioactive materials were used or created
in the designated areas. The end date for the entire class is August 31, 1946, which correlates with the end of DuPont being the management and
operating contractor at Hanford; General Electric assumed management of Hanford on September 1, 1946. This addition to the SEC, therefore, is predominately, if
not entirely, made up of former employees of DuPont. Therefore, as the CE
reviews a file and determines that the employee worked for DuPont at Hanford, potential eligibility for this SEC must be considered.

Once it is
established that the employee worked at Hanford between the earliest date of
the SEC, October 1, 1943 and August 31, 1946, the CE needs to determine whether
the employee is included in the class. There are basically two evidentiary
categories for the CE to consider when making a judgment of SEC membership in
the new class:

● Personal
dosimetry

● Employee work location

If the claimant has
either personal dosimetry or a work location in one of the specified areas, the
CE is to accept that the employee, “should have been monitored” for internal
radiological exposures.

With regard to
personal dosimetry, according the SEC petition evaluation report, “Routine
Hanford practices appear to have required assigning dosimeters to all workers
who entered a controlled radiation area.” It further states, “Based on
available records, it appears that dosimeters were assigned to all workers who
entered controlled radiation areas.”

In the case of this
addition to the SEC, all workers who should have been monitored were monitored,
though not necessarily for all nuclides needed for an EEOICPA dose
reconstruction. The CE is therefore to review the case file and dose
reconstruction report, if available, and look for any indication that the
employee was monitored. If such evidence is found, then the CE should accept
the employee’s work location, during the monitored period, was in one of the
areas designated as part of this additional class in the SEC.

However, not all
monitoring records from the time period of the class exist today. As such, if
the employee worked at Hanford during the DuPont years of operation, but there
are no monitoring records pertaining to the employee, the CE is to review the
file for any indication that the employee’s work location was either 100
B, D and F reactor areas and/or the200 Area plutonium separation
facilities and/or the 300 Area fuel fabrication and research facilities.

For
qualifying SEC class employment, it is essential that the claims examiner
review the case file in its entirety, including information obtained from NIOSH
during the dose reconstruction process, dosimetry records and contemporaneous
medical records to determine if evidence indicates the employee worked at one
of the locations specified in the designation of the SEC class. The evidence
does not need to rise to the level of beyond all reasonable doubt to qualify
for consideration.

For
those cases in which there are no dosimetry records and the adjudicator cannot
determine whether the employee worked in of the specified areas, additional
development is appropriate. In terms of suggesting to claimants what type of
additional evidence could be persuasive, claimants can be encouraged to submit
affidavits from co-workers regarding work location at Hanford.

6. Once the CE has
determined the employee has a diagnosed specified cancer and meets the
employment criteria of the SEC classes, the CE should proceed in the usual manner for a compensable SEC claim and prepare a recommended decision.

7. As discussed
earlier, the Secretary of Health and Human Services determined that it is not
feasible for NIOSH to perform complete dose reconstructions for the class of
employees who worked at Hanford in radiological areas prior to August 31, 1946.

However,
NIOSH has indicated that partial dose reconstructions, except for dose from internal plutonium and
fission products, are possible. Accordingly, for
cases with a non-specified cancer and/or that do not meet the employment
criteria of the SEC class, the CE must refer these cases back to NIOSH with
a new NIOSH Referral Summary Document (NRSD) to perform a dose reconstruction.The CE should code these cases as “NI” (Sent to NIOSH). The status
effective date is the date of the Senior or Supervisory CE signature on the
NRSD.

Upon receipt of the
dose reconstruction report, the CE proceeds in the usual manner and prepares a
recommended decision. The CE should code the case as “NR” (NIOSH Dose
Reconstruction Received) and select the “PD” (Partial Dose Reconstruction, SEC)
reason code. The status effective date is the date the dose reconstruction is
date-stamped into the District Office. The CE should not delete the “NW”
(NIOSH, returned without a dose reconstruction) or “NI” (Sent to NIOSH) code
already present in ECMS.

8. For those cases
that were identified by NIOSH as having a “specified cancer” and therefore
returned to the district office, if it is determined that the case does not
qualify for the SEC class, the CE, through the Senior CE (SrCe), notifies the
appropriate point of contact at NIOSH via E-mail to proceed with the dose
reconstruction. The SrCE then prints a copy of the “sent” e-mail (making sure
the printed copy documents the date it was sent) and inputs the NI (Sent to
NIOSH) code to ECMS, effective the date of the E-mail requesting NIOSH to
proceed with dose reconstruction. The E-mail should include a brief statement
of why the case should proceed with dose reconstruction, e.g., non-specified
cancer, insufficient latency period or does not meet the 250 work day
requirement. A hard copy printout of the E-mail is to be inserted in the case
file.

9. For any claim
that is not already at NIOSH effective October 12, 2007 and for which the CE determines a dose reconstruction is appropriate, the normal NIOSH referral process
will apply.

10. If
there is a final decision in the case and a review of the evidence of records
establishes likely inclusion in the SEC class, it will need to be reopened. In
the exercise of the Director’s discretion of the reopening process, the
Director is delegating limited authority to the four District Directors to sign
Director’s Orders for reopening. This delegated authority is limited to
reopenings based upon evidence that a Hanford employee meets the criteria for
placement into the Hanford SEC class. A sample Director’s Order is provided in Attachment
3. The Director is retaining sole signature authority for all other types
of reopenings not otherwise delegated.

11. For those cases which are reopened under the
authority granted in this Bulletin, the District Director should code the case
as “MN” (NO Initiates Review for Reopening) with a status effective date as the
effective date of this bulletin.

For all reopenings
per this bulletin, upon completing the Director’s Order to reopen the claim,
the District Director should code the case as “MD” (Claim Reopened – File
Returned to DO) to reflect that the case has been reopened and is in the
district office’s jurisdiction. (The “MZ” status code is not necessary). The
status effective date of the “MD” code is the date of the Director’s Order.

Please note that
while the “MD” code is generally input by National Office staff, entry of this
code has been delegated to the District Director, just as the authority to
grant reopenings has been in this specific circumstance.

12. Once the claim
is reopened, the CE should proceed
in the usual manner for a compensable SEC claim and prepare a recommended decision.

13. If the claim
includes both a specified cancer and a non-specified cancer, medical benefits
are only paid for the specified cancer(s), any secondary cancers that are
metastases of the specified cancer(s), and any non-specified cancers that have
a dose reconstruction that resulted in a probability of causation of 50 percent
or greater.

14. FAB personnel
must be vigilant for any Hanford case that has a recommended decision to deny.
If the employee worked at Hanford during the time specified, has a specified
cancer, and meets the 250 work day requirement, FAB is to review the case for
the parameters of the SEC as specified in this Bulletin. If the criteria of the
SEC are met, the FAB is to reverse the district office’s recommended decision
to deny and accept the case. FAB should undertake appropriate development, if
necessary, to determine membership in the SEC class. Every effort should be
taken to avoid a remand of a potential SEC claim to the District Office for
development.

15. The proposed district office operational plan goal for the
cases on the DEEOIC list described in Action #2 is to complete recommended
decisions (including reopening, if required) or refer the cases back to NIOSH
within 45 days of the date of this Bulletin for at least 50% of the cases, and
within 90 days for 90% of the cases. All cases requiring action due to
this Bulletin should be completed within 120 days.

16. To
track progress on completion of the tasks outlined in this Bulletin, the list
provided by DEEOIC outlined in Action #2 has four columns added thereto with
the headings, “Reviewed Per Bulletin,” “Action Taken,” “Date of Action,” and
“Comments.” The district offices are to complete these columns as work
progresses on implementation of this Bulletin. The updated spreadsheet is to
be forwarded to Mr. Frank James, Special Assistant, DEEOIC, every two weeks
commencing two weeks after the issue date of this Bulletin.

Disposition: Retain until incorporated in the Federal
(EEOICPA) Procedure Manual.